GARBA v. SABO
(2020)LCN/14129(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Friday, April 24, 2020
CA/J/37/2018
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Bolouku./romo Moses Ugo Justice of the Court of Appeal
Between
TANKO GARBA APPELANT(S)
And
ALHAJI DAUDA SABO RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES MUST FLOW FROM THE GROUNDS OF APPEAL
It is also trite that an issue for determination must flow from the ground of appeal filed, where an issue is not from any ground of appeal in the Notice and Ground of Appeal filed, then such issue(s) are rendered incompetent, and would be discountenanced by the Court. See AKESE V GOVERNMENT OF OYO STATE (2012) ALL FWLR (Pt. 634) page 53, OMO V JSC DELTA STATE (2000) 12 NWLR (Pt. 682) pg. 444, EBO V N.T.A. (1996) 4 NWLR (Pt. 442) 314, OTUO V NTEOGWUILE (1996) 4 NWLR (Pt. 440) 56, A.G. KWARA STATE AND ANOR V. HIS ROYAL HIGHNESS OBA MICHEAL O. OYEDELE ARIWAJOYE I AND ANOR (2001) 5 NWLR (Pt. 707) 525. Let me add that Courts have always frowned at proliferation of issues for determination formulated from ground of appeal. The rule of the game is that a number of grounds could be used to formulate an issue but it’s most undesirable to split issues on only one ground of appeal. See DOKUN AJAYI LABIYI V ALHAJI MUSTAPHA MOBERUAGBA ANRETIOLA AND ORS (1992) LPELR – 1730, ALHAJI SABIRIYU SHITTU AND ORS V OTUNBA OYEWOLE FASHAWE (2005) 14 NWLR (Pt. 946) 67. Issues must not be framed in abstract but must relate to the grounds of appeal. See EDWARD OKWEJIMINOR V G. GBAKEJI AND ANOR (2008) LPELR – 2537. For the foregoing therefore, and having found that issues 1 and 2 formulated by the Appellant cannot be related to any existing ground of appeal, rather they are like a house without a solid foundation. Such house is bound to collapse like pack of cards. In consequence therefore, issues 1 and 2 and arguments thereto by the Appellant in this appeal be and are hereby discountenanced and struck out. PER ONIYANGI, J.C.A.
WHETHER OR NOT THE BURDEN OF PROOF LIES ON THE PARTY WHO ASSERTS
By virtue of Section 131(1) and (2) of the Evidence Act, 2011, the general principle of law is that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Again under Sections 133(1) and 134 of the Evidence Act, 2011the proof required of a Plaintiff in an action for declaration of title is that of a standard of probability or preponderance of evidence. See MOGAJI V ODOFIN (1977) 4 SC 91, KAIYAOJA V EGUNLA (1974) 12 Sc 55, LASISI ADEGBESAN ABIMBOLA V SAKA ABATAN (2001) LPELR–38, ROCKONOH PROPERTY CO. LTD V NIGERIA TELECOMMUNICATIONS PLC AND ANOR (2001) 14 NWLR (Pt. 733) 468. The meaning and connotation of the phrase, “burden of proof” in civil cases has two distinct meanings i.e. The burden of proof as a matter of law and the pleadings, which are referred to as legal burden and the burden of proof in terms of adducing evidence, which is called evidential burden. In the case of FELIX O. OSAWARU V SIMON EZEIRUKA (1978) 6-7 SC. 135 at 145, ANIAGOLU JSC in explaining the issue “evidential” and “legal” burden said thus:-
“In civil cases while the burden of proof in the sense of establishing the case initially lies on the Plaintiff (JOSEPH CONSTANTINE STREAM LINE LTD V IMPERIAL SWELTING CORPORATION LTD. 91942) AC, 154, 174) the proof of rebuttal of issues which arise in the course of proceedings must shift from the Plaintiff to the Defendant and vice versa as the case progresses. The general rule which is enshrined in the maxim Ei qui affirmat no ei qui negat incumbit probatio has been provided for in Section 134 to 136 of the Evidence Act Cap. 62. In particular, subsection 136 (now subsection 2 of Section 133 of the Evidence Act, 2011) has provided that:
“If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the fact in the pleading have been dealt with.” See BAFUNKE JOHNSON AND ANOR V. AKINOLA MAJA AND ORS (1951) 13 WACA 290, ODUKWE V OGUNBIYI (1998) 6 SC. 72 at 80-81.”
See also the case of ANPP V PDP (2006) 17 NWLR (Pt. 1009) 467 at 493, BUHARI V OBASANJO AND OR (2005) 13 NWLR (Pt. 941) 1 at 122. PER ONIYANGI, J.C.A.
WHAT ARE COUNTERCLAIMS?
If I may ask, what is a counter claim? This Court in the case of COMMISSIONER OF HEALTH, NASARAWA STATE AND ORS V. DR MICHEAL KLINLONG DADET (2009) LPELR – 8907, Yahaya JCA said thus:
“A counter-claim is a separate and independent action on its own, although the normal practice, for the purpose of convenience, is for a Defendant to join it with his statement of defence and it must be proved during the trial, on preponderance of evidence as other civil claims are wont to. See OGBONNA V A.G. IMO STATE (1992) 1 NWLR (Pt. 220) 647 and UNOKAN ENTERPRISES LTD V. OMUVWIE (2005) 1 NWLR (Pt. 907) 293. Because a counter-claim is a distinct claim, separate from the main claim, with separate filing fees from the statement of defence, and the Defendant who now becomes the Plaintiff, has to prove it, the Court has a duty and is obliged to consider it in its judgment and pronounce on it one way or the other. See MUSA V. YUSUF (2006) 6 NWLR (Pt. 977) 454 and OGLI OKO MEMORIAL FARMS LTD Vs. N.A.C.B. (2008) 4 SCNJ 436 at 448. Flowing from the foregoing, it stands to reason and trite that for all intents and purposes, a counter claim is a separate, independent and distinct action. Like the main claim, must be proved against the Plaintiff counter claimed and separate judgment entered by the trial Court. Therefore in a trial where a Defendant counter claimed against the Plaintiff a judgment should and must be entered. That is to say, in one suit, there are two trials conducted in one trial and two distinct judgments given in the end. See USMAN V. GARKE (2003) 14 NWLR (Pt. 840) 261, JERIC (NIG) LTD V UNION BANK OF NIGERIA PLC (2000) LPELR – 1607,CHIEF EYO EDEM NSEFIK [SINCE DEAD] AND ORS V ROSEMARY MUNA AND ORS (2013) LPELR – 21862, JERIC (NIG) LTD V UNION BANK (2000) 15 NWLR (Pt. 691) 14 SC, ZENITH BANK AND ANOR V. EKEREUWEM AND ANOR (2011) LPELR – 5121. PER ONIYANGI, J.C.A.
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): At the High Court of Justice Bauchi State, the Respondent as Plaintiff in paragraph 12 of his amended statement of claim, sought for the following reliefs against the Appellant as Defendant.
(a) A declaration that the plot of land including the development, the subject matter of this suit lying and situate at Sabuwar Kasuwar Railway Bauchi LGA of Bauchi State belong to the Plaintiff having bought same from the Defendant’s father and enjoyed quiet and peaceful possession of it for over 20 years.
(b) An interim and interlocutory injunction of the Court restraining the Defendant, whether by himself, his agents, privies, servants, cohorts, assign and any other person deriving authority from him from entering, trespassing encroaching and or doing anything prejudicial to the land including the development the subject matter of the suit.
(c) An Order of perpetual injunction of this Court restraining the Defendant from trespassing, entering, encroaching and or embarking or similar threat of claim of possession/ownership of the plot of land including the development lying and
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situated at Sabuwar Kasuwar Railway Bauchi State.
The case of the Plaintiff is that the father of the Appellant Alhaji Garba Aliyu (deceased) sometimes on the 17th day of July 1985 offered to dispose part of his house to the Plaintiff (Respondent) comprising of three (3) bedrooms, a kitchen. The Plaintiff accepted the offer and paid an agreed sum of Eight Thousand Naira only (N8,000.00). Further to this, the Appellant’s father again on the 13th day of February, 1986 offered for sale his three shops to the Respondent for the sum of Five Thousand Naira (N5,000.00) only. The offer was accepted and the sum of Five Thousand Naira was paid. Agreement was made evidencing the respective sale transactions. The agreement for the sale of the three rooms and a kitchen and that for the three shops were tendered in evidence during trial as Exhibits A1 and A2 respectively. It is the case of the Plaintiff (Respondent), that he took possession of both properties and immediately put a relation of his in the three rooms and kitchen and rented out the three shops to tenants.
After the demise of the Appellant’s father (the seller), the Appellant approached
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the Respondent and demanded to see his title document to both properties. He was obliged. After a while, the Appellant chased out the tenants in the shops and contended that he was not in the picture of the sale transactions between his late father and the Respondent and that the properties were sold cheaply. The Respondent approached the Court. There issues were joined. The Appellant’s case is that his father did not sell the two properties to the Respondent because the properties were mortgaged to the United Bank for Africa (UBA). At the trial, the Respondent testified as PW4 and called three additional witnesses. In the same vein, the Appellant testified and called three witnesses.
In the end, the learned trial judge entered judgment for the Respondent as per his claims. The Appellant was not happy with the outcome of the suit and hence this appeal vides the Notice of Appeal dated 9th July, 2017 and filed on 11th day of July, 2017. The appeal was contested on two grounds namely:
(1) The trial Court erred in law when it held that the Respondent is entitled to all the reliefs sought in the judgment delivered on 4th July, 2017.
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(2) The trial Court erred in law when it held that the Defendant has not answered the claim against him.
RELIEFS SOUGHT
Allow the appeal and set aside the whole judgment of the lower Court.
Consequent upon the transmission of the Record of Appeal on the 24th day of January, 2018 parties filed and exchanged their respective briefs of argument. The Appellant’s brief of argument was filed on the 19th October, 2018 but out of time. Vide the Order of this Court, same was deemed as properly filed and served on the 7th day of February, 2019. In the said adopted brief, the following issues were presented for the determination of the appeal.
(1) Whether the trial Court was right to have held that Exhibit A1 which is an unsigned Sales agreement which existence is doubtful is genuine and relied on same? (Ground 3)
(2) Whether the Respondent (therein Plaintiff) can be said to be in the possession of the house the subject matter in issue considering the evidence before the lower Court? (Ground 4)
(3) Whether from the totality of the evidence presented by the Respondent (therein Plaintiff) the Court was right to have tilted the pendulum of
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justice in his favour (Ground 1)
(4) Whether by the evidence adduced before the lower Court by the Appellant, he is entitled to the counter claim? (Ground 2)
Equally, the Respondent, in his adopted brief of argument formulated the following issues for determination:-
(1) Whether from the facts and evidence placed before the trial Court, Exhibits A1 and A2 are admissible in evidence. (Ground 3)
(2) Whether the payment of the amount for the properties by the Respondent in presence of witnesses and transfer of the title and possession since 1985 and 1986 up to this moment is doubtful. (Ground 4)
(3) Whether from the fact and evidence available the Respondent proved his case before the trial Court as required by the law. (Ground 1)
(4) Whether the Appellant proved the counter claim and entitled to the reliefs sought before the trial Court (Ground 2).
I have carefully read the respective issues presented by parties. On a sober reading of the issues by the Respondent, it dawned on me that same in content are designed to achieve the same objective goal. They only differ in the choice of words. For that reason I have decided to adopt the
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issues formulated by the Appellant for the determination of the appeal. That does not mean that all the four issues will be adopted for the determination of the appeal. This is so because of the following observations. The Appellant has in his Notice and Grounds of Appeal filed on the 17th July, 2017 and which he relied upon on the 6th day of February while adopting his brief of argument two grounds of appeal. There is no indication that the said Notice and Grounds of Appeal was ever amended. But somehow and for reasons best known to the Appellant, his issues one (1) and two (2) are drafted from grounds 3 and 4 which are non existence in the Notice and Grounds of Appeal filed on the 11/2//2017 relied upon by the Appellant in this appeal.
By Order 7 Rule 4 of the Court of Appeal Rules (2016) an Appellant shall not be heard in support of any ground of appeal not mentioned in the Notice of Appeal. For purposes of better understanding I reproduce Order 7 Rule 4 of the Rules of this Court herein under:
ORDER 7 RULE 4:-
“The Appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in
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the notice of appeal, but the Court may in its discretion allow the Appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.”
Having regard to the foregoing Rule and plethora of decided cases by the Apex Court and this Court on issues for determination, and as a general rule, it is not every fact in dispute or every ground of appeal that raises an issue for determination. In some cases a fact or ground may raise an issue. An issue for determination in an appeal is a substantial question of law or of fact or both arising from the ground of appeal in an appeal. It therefore suffice to say that issues for determination must essentially be formulated from the grounds of appeal. See OKWUDILI UGO V OBIEKWE AND ANOR (1989) NWLR (Pt. 99) 566, ABDULLAHI HARUNA ESQ AND ORS V KOGI STATE HOUSE OF ASSEMBLY AND ORS (2010) LPELR- 4231, EGBE V ALHAJI AND ORS (1990) 1 NSCC [Vol.21] (Pt. 1) 306, DALEK NIG LTD V. OMPADEC (2007) ALL WLR [364] 204 at 226. It is also trite that an issue for determination must flow from the ground of appeal filed, where an issue is not from any
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ground of appeal in the Notice and Ground of Appeal filed, then such issue(s) are rendered incompetent, and would be discountenanced by the Court. See AKESE V GOVERNMENT OF OYO STATE (2012) ALL FWLR (Pt. 634) page 53, OMO V JSC DELTA STATE (2000) 12 NWLR (Pt. 682) pg. 444, EBO V N.T.A. (1996) 4 NWLR (Pt. 442) 314, OTUO V NTEOGWUILE (1996) 4 NWLR (Pt. 440) 56, A.G. KWARA STATE AND ANOR V. HIS ROYAL HIGHNESS OBA MICHEAL O. OYEDELE ARIWAJOYE I AND ANOR (2001) 5 NWLR (Pt. 707) 525. Let me add that Courts have always frowned at proliferation of issues for determination formulated from ground of appeal. The rule of the game is that a number of grounds could be used to formulate an issue but it’s most undesirable to split issues on only one ground of appeal. See DOKUN AJAYI LABIYI V ALHAJI MUSTAPHA MOBERUAGBA ANRETIOLA AND ORS (1992) LPELR – 1730, ALHAJI SABIRIYU SHITTU AND ORS V OTUNBA OYEWOLE FASHAWE (2005) 14 NWLR (Pt. 946) 67. Issues must not be framed in abstract but must relate to the grounds of appeal. See EDWARD OKWEJIMINOR V G. GBAKEJI AND ANOR (2008) LPELR – 2537. For the foregoing therefore, and having found that issues 1 and 2 formulated by the
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Appellant cannot be related to any existing ground of appeal, rather they are like a house without a solid foundation. Such house is bound to collapse like pack of cards. In consequence therefore, issues 1 and 2 and arguments thereto by the Appellant in this appeal be and are hereby discountenanced and struck out.
I now come to issues 3 and 4. In my humble view, what the Appellant is questioning by the two issues is similar and same. On one hand, (issue 3) he is asking whether or not the Respondent has discharged the burden of proof placed on him to warrant the grant of the reliefs sought by the trial Court.
In the same vein, the question posed in issue 4 is whether the evidence by the Appellant in proof of his counter claim is preponderate enough to entitle him to the relief sought in the counter claim.
In both issues, the common question is on discharge of burden and standard of proof. For the foregoing therefore, I will treat the two issues together.
ISSUE 3
Whether from the totality of the evidence presented by the Respondent (therein Plaintiff) the Court was right to have tilted the pendulum of justice in his favour.
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ISSUE 4
Whether by the evidence adduced before the lower Court by the Appellant, he is entitle to the counter claim.
On issue 3, the argument of the Appellant is in the negative. He referred to page 231 of the record for the conclusion of the Court on this issue where the Court relied on Exhibits “A1 and A2”. It is his case that the aforementioned exhibits formed the basis of the decision of the trial Court.
He argued that in a matter for declaration of title to land, the Plaintiff is to prove his title by establishing one or more out of the five ways of proving title as prescribed in the case of LAMBE V AREMU (2014) ALL FWLR (Pt. 729) at 1075 page 1085 Ratio 5. He contended further that it is clear that the basis upon which the lower Court entered judgment in favour of the respondent are:-
(a) By act of long possession and enjoyment of the land.
(b) By production of document of title which are duly authenticated.
He added that the learned trial judge relied on the foregoing two ways of proving title in entering judgment in favour of the Respondent. He urged the Court to hold that the Respondent was not in possession. He
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relied on his argument in respect of issues one and two. On the whole, he urged the Court to hold that the Respondent failed to prove any of the ways of proving title to land and to answer the third (3rd) issue in the negative.
ISSUE 4
He answered the question posed in this issue in the positive. That is to say that by the evidence adduced by the Appellant regarding his counter claim and his pleading on same, he is entitled to judgment. He reproduced the reliefs sought in the counter claim of the Appellant. He also referred to the testimonies of DW1, DW2 and DW3 which in essence is to the effect that they are tenants in the three shops which is part of the claims by the Appellant. He added that the testimonies of the three witnesses and that of the Appellant as PW4 were not controverted. According to him, the only testimony on possession by the Respondent is that of PW2 who said he is in occupation of the three rooms and kitchen for a period of 20 years and that the Respondent put him in occupation. He contended that the evidence of PW2 was discredited when in answer to a question under cross examination said, he has been occupying the room for only
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7 years. He submitted that the Appellant has established that he is in possession of the house which is the subject matter of the counter claim. In addition, the Appellant also tendered the certified true copy of the certificate number BA/42/92 covering the whole property tendered as Exhibit “G”. He argued further that the Plaintiff has the sole responsibility to prove his title to the land in issue. He relied on the case of OLASUPO V MORAKINYO (2014) ALL FWLR (Pt. 726) at 593 page 595 Ratio 2 on the principle that in an action for declaration, the Plaintiff is not expected to take advantage of the weakness of the Defendant’s case but on the strength of his own case.
In conclusion, he urge the Court to hold that the lower Court had erred by entering judgment in favour of the Respondent and to enter judgment in favour of the Appellant.
In response, the learned Counsel representing the Respondent submitted that the Respondent proved his case before the trial Court as required by the law. He argued that it is an elementary principle of law that in civil matter or cases as in the instant case, the burden of proof generally is on the
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party who asserts a fact to prove same and the standard of proof is on the preponderance of evidence or balance of probabilities. He referred to Sections 133 and 134 of the Evidence Act, 2011 Cap. E14, LFN (as amended) and the case of UDO V ESSIEN (2014) ALL FWLR (Pt. 749) pg. 1184 at 1202 para. H. He submitted further that the burden of proof placed on the party who asserts the existence of a fact shall be discharged by adducing credible, cogent, and reliable evidence and he must succeed on the strength of his case and not the weakness of the adverse party’s case. He relied on the case of JULIUS BERGER NIG. PLC VS OGUNDEHIN (2013) ALL FWLR (Pt. 676) pg. 497 at 515 paras. F-H, N.W.D.M. LTD V SMOOTH (2013) (Pt. 664) pg. 87 at 105 para. G, ERINFOLAMI V OSO (2013) ALL FWLR (Pt. 673) pg. 1991 at 2001-2002 paras. A-B, on the burden of proof placed on the party who asserts, as provided for under Sections 131-133 of the Evidence Act, 2011, he relied on the case of MBANEFO V AGBU (2014) ALL FWLR (Pt. 724) 40 @ 71-73 paras. H-B.
He argued further that, flowing from the foregoing principle of law in a claim for declaration of title, the onus of proof is on
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the Plaintiff who asserted. He relied on the evidence of PW1, PW2 and PW3 whose testimonies were not discredited. It is also his contention that by necessary implication, if the Plaintiff fails to discharge the onus placed on him by law, the weakness of the Defendant’s case cannot help his case and judgment will be entered in favour of the Defendant. He relied on the cases of OMOTOSHO V SAKA (2015) ALL FWLR (Pt. 782) pg. 1686 at 1702 paras. C-D, YAKUBU V JAUROYEL (2014) ALL FWLR (Pt. 734) at 42. Para. F, OLUSUPO V. MORAKINYO (2014) ALL FWLR (Pt. 726) at 606 Para. E. He submitted that from the summary of Evidence placed before the Court and captured by the learned Counsel representing the Appellant, if placed in an imaginary scale of justice, it is indeed not in doubt that the Plaintiff/Respondent proved his case as required by the law warranting the trial Court to enter judgment in his favour. He argued that the evidence of PW1 to PW4 are conclusive substantiation that there was a sale transaction between the Defendant/Appellant’s late father, Alhaji Garba Aliyu of the house consisting of three rooms and a kitchen on 17/7/1985 at the consideration
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of N8,000.00 (Eight Thousand Naira) only and equally sale transaction of three (3) shops in 1986, with the Plaintiff via Exhibits A1 & A2 as established by the evidence of PW1, PW2 and PW4 who witnessed the transaction, payments and transfer of title/possession. He relied on the following cases MARY AKPANG (NEE ABEJESHI) V MR. DAVID AMIYE AND 2 ORS (2015) 18 NWLR (Pt. 1490) pg. 148 at 152 Ratio 3, THOMAS NRUAMAH AND 4 ORS V REUBEN EBUZOEME AND 9 ORS (2013) 12 NWLR (Pt. 1272) pg. 474 at 478 Ratio 1. Having purchased the properties, an agreement was made, and possession delivered and taken has established by two (2) out of the five ways of establishing title. He cited the case of MR. EMMANUEL A. ADENIRAN V MR. EMMANUEL ALAO AND 1 ORS (2002) 4 WRN pg. 1 at 11 Ratio 7. He added that from the circumstances of the foregoing it is clear that the Plaintiff/Respondent discharged the burden placed on him. He relied on the case of R. A. ADEAGBO V PRINCE M. A. WILLIAMS (1998) 2 NWLR (Pt. 536) pg. 20 at 122 Ratios 3, 7, 8 and 10.
He contended further that from the evidence adduced by parties, and considering the authorities cited, the evidence of the
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Plaintiff/Respondent has by far outweigh that of the Defendant/Appellant. He relied on the case of HARUNA YUNUSA SAHEED V PATRICK IBRAHIM YAKOWA AND 1 OR (2013) 7 NWLR (Pt. PT. 1352) pg. 124 at 135 Ratio 4.
Finally, he argued that assuming without conceding that the Plaintiff/Respondent did not tender any of the two (2) agreements before the trial Court, was the evidence of PW1, PW2 and PW4 not convincing, relevant and same proved the Plaintiff/Respondent’s case, as against the Defendant/Appellant un-implementable assertions in law that has no leg to stand, aiming at frustrating the cause of justice by claiming properties that were disposed and possession taken. He added that we indeed need to be afraid of the Almighty hence we shall account for our deed. He urge the Court to resolve this issue in favour of the Respondent.
By virtue of Section 131(1) and (2) of the Evidence Act, 2011, the general principle of law is that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Again under Sections 133(1) and 134 of the Evidence Act, 2011
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the proof required of a Plaintiff in an action for declaration of title is that of a standard of probability or preponderance of evidence. See MOGAJI V ODOFIN (1977) 4 SC 91, KAIYAOJA V EGUNLA (1974) 12 Sc 55, LASISI ADEGBESAN ABIMBOLA V SAKA ABATAN (2001) LPELR–38, ROCKONOH PROPERTY CO. LTD V NIGERIA TELECOMMUNICATIONS PLC AND ANOR (2001) 14 NWLR (Pt. 733) 468. The meaning and connotation of the phrase, “burden of proof” in civil cases has two distinct meanings i.e. The burden of proof as a matter of law and the pleadings, which are referred to as legal burden and the burden of proof in terms of adducing evidence, which is called evidential burden. In the case of FELIX O. OSAWARU V SIMON EZEIRUKA (1978) 6-7 SC. 135 at 145, ANIAGOLU JSC in explaining the issue “evidential” and “legal” burden said thus:-
“In civil cases while the burden of proof in the sense of establishing the case initially lies on the Plaintiff (JOSEPH CONSTANTINE STREAM LINE LTD V IMPERIAL SWELTING CORPORATION LTD. 91942) AC, 154, 174) the proof of rebuttal of issues which arise in the course of proceedings must shift from the Plaintiff to
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the Defendant and vice versa as the case progresses. The general rule which is enshrined in the maxim Ei qui affirmat no ei qui negat incumbit probatio has been provided for in Section 134 to 136 of the Evidence Act Cap. 62. In particular, subsection 136 (now subsection 2 of Section 133 of the Evidence Act, 2011) has provided that:
“If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the fact in the pleading have been dealt with.” See BAFUNKE JOHNSON AND ANOR V. AKINOLA MAJA AND ORS (1951) 13 WACA 290, ODUKWE V OGUNBIYI (1998) 6 SC. 72 at 80-81.”
See also the case of ANPP V PDP (2006) 17 NWLR (Pt. 1009) 467 at 493, BUHARI V OBASANJO AND OR (2005) 13 NWLR (Pt. 941) 1 at 122.
In this appeal at hand, it is not in dispute that the original owner of the property in issue is the deceased father of the Appellant. By virtue of Exhibits A1 and A2, there is that evidence that sometimes in 1985 and 1986 there was a transaction between the
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Respondent and the Appellant’s father for the sale of three rooms and a kitchen and later for the sale of three shops at the rate of N8,000.00 and N5,000.00 Naira respectively. The transaction was reduced into writing, evidencing the sales between the aforementioned parties. The Appellant, a son of the deceased seller played no role in the transaction. There is that evidence of PW1, PW2 who drafted the document and PW3, on the role they played in the sale transaction. See Exhibits A, A1, B and B1 respectively.
Be that as it may, it is my view that the Respondent’s evidence both oral and documentary are weightier than that of the Appellant regarding the claims of the Respondent before the trial Court. The learned trial judge from pages 218-222 of the record of appeal, precisely reviewed the evidence of witnesses. Not this alone, he also summarized the submissions of respective Counsel from pages 222 to 227. From pages 228 to 231, of the Record of Appeal, the learned trial judge evaluated the available evidence before the Court, before coming to the findings and conclusion reached. See pages 229-230 in particular. In my candid view this is a
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proper evaluation of the evidence by parties before the Court as it relates to the claim of the Respondent as Plaintiff before the trial Court. In other words, what I am saying is that the evidence proffered by the Respondent and his witnesses and coupled with the documentary exhibits tendered are weighty and preponderant in the circumstance to entitle the Plaintiff/Respondent to judgment as founded and concluded by the learned trial judge. It therefore suffice to say that issue 3 is answered in the affirmative and resolved against the Appellant.
What is now left is the question raised in issue number 4 which is whether by the evidence of the Appellant in proof of his counter claim, he is entitled to judgment. Sadly, the situation in this issue is not the same as that in issue 3. Upon a sober and careful perusal of the pages of the judgment by the learned trial judge, I notice that there is a grave omission or inadvertence on the part of the learned trial judge to consider in any form the case of respective party on the counter claim of the Appellant. Apart from noting on record that the Appellant filed his statement of defence, everything about the
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counter claim by the Appellant was put in the cooler and sent to the land of simili. All the learned trial judge said about the counter claim is contained on page 218 of the record of appeal thus:
“In support of this writ is a 12 paragraph statement of claim dated 22nd March, 2013 reacting to this Writ the Defendant filed an 18 paragraph amended statement of defence and a counter claim of 15 paragraphs.”
Apart from the foregoing, nothing is said about the counter claim again by the Appellant before the Court. Neither was there any review of the evidence for and against the counter claim. The result is that, there was no finding nor conclusion registered in the record on the counter claim of the Appellant.
If I may ask, what is a counter claim? This Court in the case of COMMISSIONER OF HEALTH, NASARAWA STATE AND ORS V. DR MICHEAL KLINLONG DADET (2009) LPELR – 8907, Yahaya JCA said thus:
“A counter-claim is a separate and independent action on its own, although the normal practice, for the purpose of convenience, is for a Defendant to join it with his statement of defence and it must be proved during the trial, on
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preponderance of evidence as other civil claims are wont to. See OGBONNA V A.G. IMO STATE (1992) 1 NWLR (Pt. 220) 647 and UNOKAN ENTERPRISES LTD V. OMUVWIE (2005) 1 NWLR (Pt. 907) 293. Because a counter-claim is a distinct claim, separate from the main claim, with separate filing fees from the statement of defence, and the Defendant who now becomes the Plaintiff, has to prove it, the Court has a duty and is obliged to consider it in its judgment and pronounce on it one way or the other. See MUSA V. YUSUF (2006) 6 NWLR (Pt. 977) 454 and OGLI OKO MEMORIAL FARMS LTD Vs. N.A.C.B. (2008) 4 SCNJ 436 at 448. Flowing from the foregoing, it stands to reason and trite that for all intents and purposes, a counter claim is a separate, independent and distinct action. Like the main claim, must be proved against the Plaintiff counter claimed and separate judgment entered by the trial Court. Therefore in a trial where a Defendant counter claimed against the Plaintiff a judgment should and must be entered. That is to say, in one suit, there are two trials conducted in one trial and two distinct judgments given in the end. See USMAN V. GARKE (2003) 14 NWLR (Pt. 840) 261,
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JERIC (NIG) LTD V UNION BANK OF NIGERIA PLC (2000) LPELR – 1607,CHIEF EYO EDEM NSEFIK [SINCE DEAD] AND ORS V ROSEMARY MUNA AND ORS (2013) LPELR – 21862, JERIC (NIG) LTD V UNION BANK (2000) 15 NWLR (Pt. 691) 14 SC, ZENITH BANK AND ANOR V. EKEREUWEM AND ANOR (2011) LPELR – 5121.
For all the foregoing, I am at one with the Appellant that the learned trial judge failed, neglected and or omitted to consider the counter claim of the Defendant (Appellant) in its judgment.
Having said this, the question is what becomes of the counter claim? In my humble view, the interest of justice would be better served if this Court step into the shoes of the trial Court in exercise of its powers under Order 20 Rules 11(1) and (2) and Section 15 of the Court of Appeal Act, consider the evidence before the trial Court as it relates to the Counter claim by the Appellant and make the appropriate pronouncement in that circumstance.
I have carefully considered the available evidence in the record of appeal. It is the case of the counter Claimant before the trial Court that his father did not sell the properties in issue to the Respondent who was the
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Plaintiff and that the said properties were subject of an existing mortgage between his late father and United Bank for Africa Plc. Against these pieces of evidence by the Defendant counter claimant is his response to question when under cross examination. At one breath he said his father did not tell him that he sold the said properties. Further to this is that he is not a party to the said mortgage transaction. There is that uncontroverted evidence of PW1, PW2 and PW3 which also supported the evidence of the Plaintiff that the said properties were sold to him. Exhibits A, A1 and B and B1 were tendered and admitted to support those assertions. The counter Claimant having admitted that his father neither informed him that he sold the property and neither was he a party to the mortgage renders his claim to the properties unreasonable and very weak. Further to the evidence by the Plaintiff and his witnesses is the evidence that after the suit by the mortgagee against the father of the Defendant to recover the loan granted, the properties pledged were auctioned to a 3rd party. The deceased father of the Defendant again repurchased back the property from the
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purchaser and had the property reverted to him. These suggested to me that at the time of sale of the properties in issue to the Plaintiff (Respondent) the properties were not encumbered and that the Appellant has no knowledge of the transaction. In the absence of any convincing and believable evidence to fault the sale transaction of the said properties by the Defendant counter Claimant’s father, the counter claim of the Appellant before the trial Court fails for lack of evidential proof. I accordingly so hold. In consequence, the counter claim of the Defendant (Appellant) before the trial Court is dismissed.
Finally, this appeal is devoid of any merit and it is hereby dismissed in its entirety.
In consequence the judgment of High Court of Bauchi State in suit No. BA/150/2008 delivered on 26th day of June, 2017 is hereby affirmed.
A cost of N100,000.00 (One Hundred Thousand Naira) only is awarded against the Appellant and in favour of the Respondent.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Mudashiru Nasiru Oniyangi, JCA. His Lordship
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has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.
I too find no merit in the appeal and I hereby dismiss same. I affirm the decision contained in the judgment delivered by the High Court of Bauchi State on the 26th day of June, 2017 in Suit No BA/150/2008. I abide the order on costs in the lead judgment
BOLOUKUROMO MOSES UGO, J.C.A.: I agree.
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Appearances:
S. Aliyu Esq., with him, T.A. Lenkat Esq. For Appellant(s)
Respondent’s Counsel absent For Respondent(s)
